K was assigned to prosecute an accused charged with
murder. Prior to the commencement of the preliminary inquiry, he received the
results of DNA and biological tests conducted on blood found at the scene of
the crime which implicated a different person than the accused. Ten days
later, he advised the accused’s counsel that the results of the testing would
not be available in time for the preliminary inquiry. The defence counsel only
learned of the testing results at the preliminary hearing, and complained to
the Deputy Attorney General that there had been a lack of timely and adequate
disclosure. K was reprimanded and removed from the case after a finding that the
delay was unjustified. Six months later, the accused complained to the
appellant Law Society about K’s conduct. K sought an order that the Law
Society had no jurisdiction to review the exercise of prosecutorial discretion
by a Crown prosecutor and an order that the Rule of the Code of Professional
Conduct requiring a prosecutor to make timely disclosure to the accused or
defence counsel was of no force and effect. K’s application was dismissed by
the Court of Queen’s Bench, but that decision was overturned by the Court of
Appeal.

Held: The
appeal should be allowedand the trial judgment restored.

The legislature of Alberta has the power to regulate
the legal profession, which it has duly conferred upon the Law Society under
the Legal Profession Act. Since the federal government has jurisdiction
over criminal law and procedure and the province has jurisdiction over the
administration of justice, including the regulation of lawyers and reviews of
alleged breaches of ethics, there is a strong possibility of overlap between
the provincial and federal spheres. Regard must be had to the pith and
substance of the impugned rule to determine if it is an unconstitutional
regulation by the province of criminal law and procedure. Here, the Rule
requiring timely disclosure is directed at governing the ethical conduct of
lawyers, is authorized by the Legal Profession Act, is limited to
circumstances in which the lawyer acted dishonestly or in bad faith, and is not
intended to interfere with the proper exercise of prosecutorial discretion.
Accordingly, the Rule applies only to matters of professional discipline and
does not intrude into the area of criminal law and procedure.

A decision of the Attorney General within the
authority delegated by the sovereign is not subject to interference by other
arms of government. An exercise of prosecutorial discretion will, therefore,
be treated with deference by the courts and by other members of the executive,
as well as statutory bodies like provincial law societies. Prosecutorial
discretion will not be reviewable except in cases of flagrant impropriety.
Decisions that do not go to the nature and extent of the prosecution, such as
the decisions that govern a Crown prosecutor’s tactics or conduct before the court,
do not fall within the scope of prosecutorial discretion, however,
but are governed by the inherent jurisdiction of the court to control its own
processes once the Attorney General has elected to enter into that forum.

Because Crown prosecutors must be members of the Law
Society, they are subject to the Law Society’s code of professional conduct,
and all conduct that is not protected by the doctrine of prosecutorial
discretion is subject to the conduct review process. As the disclosure of relevant
evidence is not a matter of prosecutorial discretion but rather a legal duty,
the Law Society possesses the jurisdiction to review an allegation that a Crown
prosecutor acting dishonestly or in bad faith failed to disclose relevant
information, notwithstanding that the Attorney General had reviewed it from
the perspective of an employer. A clear distinction exists between
prosecutorial discretion and professional conduct, and only the latter can be
regulated by the Law Society. The Attorney General’s office has the ability to
discipline a prosecutor for failing to meet the standards set by that office,
but that is a different function from the ability to discipline the same
prosecutor in his or her capacity as a member of the Law Society. The Act gives
the Law Society jurisdiction over a very broad range of conduct including
prosecutorial decisions made dishonestly or in bad faith. Disclosure of
relevant evidence is a matter of prosecutorial duty, and transgressions related
to this duty constitute a very serious breach of legal ethics. Here, it appears
that K failed to disclose relevant information, a violation of his duty, but
later offered an explanation which would help to determine if he had acted
dishonestly or in bad faith. If so, this would be an ethical breach falling
within the Law Society’s jurisdiction. The Law Society’s jurisdiction to
review K’s failure to disclose relevant evidence to the accused is limited to
examining whether it was an ethical violation.

Canada. Law Reform Commission.
Working Paper 62. Controlling Criminal Prosecutions: The
Attorney General and the Crown Prosecutor. Ottawa: The Commission, 1990.

Edwards, J. L. J. The Law
Officers of the Crown: A study of the offices of Attorney‑General and
Solicitor‑General of England with an account of the office of the
Director of Public Prosecutions of England. London: Sweet & Maxwell,
1964.

1These are the reasons following the decision of the Court on May 17,
2002 to allow the appeal. The appellant Law Society of Alberta claimed the
jurisdiction to apply the standards for the practice of law in the province to
all members of the profession including those employed by the Attorney General
of Alberta.

2The respondents Attorney General and Craig Charles Krieger (“Krieger”),
its employee, a Crown prosecutor, submitted that the Law Society does not have
the jurisdiction to review the exercise of prosecutorial discretion by an agent
of the Attorney General in the conduct of a prosecution. The respondents
submitted on this basis that the appellant does not have the jurisdiction to
investigate an allegation of bad faith or dishonesty against a Crown prosecutor
in connection with a failure to disclose relevant information to the accused as
required by law.

3We agree that there are certain decisions of Crown prosecutors that
cannot be reviewed by the Law Society. It is a constitutional principle that the
Attorneys General of this country must act independently of partisan concerns
when exercising their delegated sovereign authority to initiate, continue or
terminate prosecutions. So long as they are made honestly and in good faith,
prosecutorial decisions related to this authority are protected by the doctrine
of prosecutorial discretion.

4However, we do not agree that the Law Society lacks the jurisdiction to
review an allegation that a Crown prosecutor in bad faith failed to disclose relevant
information. As a consequence of its exclusive jurisdiction over property and
civil rights in the province, under s. 92(13) of the Constitution Act, 1867,
the Legislature of Alberta has the power to regulate the legal profession,
which it has duly conferred upon the Law Society under the Legal Profession
Act. Because Crown prosecutors must be members of the Law Society, it
thereby follows Crown prosecutors are subject to the Law Society’s code of
professional conduct. All conduct that is not protected by the doctrine of
prosecutorial discretion is subject to the conduct review process.

5As the disclosure of relevant evidence is not a matter of prosecutorial
discretion but, rather, is a legal duty, the Law Society possesses the
jurisdiction to review an allegation that a Crown prosecutor acting dishonestly
or in bad faith failed to disclose relevant information.

II. Facts

6In 1993, Douglas Ward (“Ward”) was charged with murder. In 1994, Ward
was prosecuted for that murder. The prosecutor was the respondent Krieger, a
member of the Law Society of Alberta employed by the Attorney General of that
province. The Crown theory was that the deceased attacked and wounded the
accused with a knife. Later, out of revenge, the accused stabbed the deceased
to death while he lay on his bed.

7On June 1, 1994, the respondent Krieger telephoned Ward’s lawyer, Thomas
Engel, and advised Engel that the results of DNA and biological testing
conducted by the Crown of the blood found at the crime scene would not be
available for the preliminary inquiry which commenced on June 6, 1994.

8After the first day of the inquiry, Engel learned that there were
preliminary results from the blood tests that implicated a different person and
were accordingly favourable to the accused. Those results were known by
Krieger on May 20, 1994, prior to the June 1 telephone call and the
commencement of the preliminary inquiry.

9Engel complained in writing to the Deputy Attorney General that there
had been a lack of timely and adequate disclosure of the blood tests. It was
his position that the test results had been deliberately withheld from him. The
Attorney General’s office investigated the complaint. Krieger’s position was
that he had no intention of withholding the results of the blood tests but had
delayed disclosure while awaiting confirmation and full results.

10The internal investigation of the Attorney General’s office concluded
that the delay was unjustified and that Krieger had made an error of judgment.
He was disciplined by a letter of reprimand and was removed from the case.
Engel was advised of this resolution and also about the drafting of a new
guideline requiring Crown prosecutors to consult with the chief Crown
prosecutor before delaying disclosure for investigative purposes. In addition,
every Crown prosecutor was reminded of the accused’s right to disclosure.

11Six months later the accused himself complained in writing to the
appellant Law Society, repeating Engel’s allegations and saying he was not
satisfied with the chief Crown prosecutor’s response. The Law Society’s
complaints officer sent the matter to the Deputy Secretary of that Society, who
declined to dismiss the complaint. He referred it to the Conduct Committee
Panel for a recommendation on how to proceed.

12The Deputy Secretary’s memo cited Rule 28(d) of the AlbertaCode
of Professional Conduct, which requires a prosecutor to “make timely
disclosure to the accused or defence counsel . . . of all known relevant facts
and witnesses, whether tending towards guilt or innocence”.

13The Rule is followed by a commentary which explains that it “is not
intended to establish policy nor to interfere with the proper exercise of
prosecutorial discretion” and that “the Law Society’s scrutiny of conduct
involving an exercise of discretion will be limited to circumstances in which
the discretion was exercised dishonestly or in bad faith”.

14Before the Conduct Committee acted, Krieger sought an order from the
Alberta Court of Queen’s Bench that the Law Society had no jurisdiction to
review the exercise of prosecutorial discretion by a Crown prosecutor or to
discipline him or her therefor, and that the rules of the Code of
Professional Conduct of the Law Society of Alberta were of no force and
effect.

III. Relevant
Statutory and Constitutional Provisions

15Legal Profession Act, S.A. 1990, c. L‑9.1 (now R.S.A. 2000,
c. L-8)

6 The Benchers may by resolution

.
. .

(l) authorize or establish a code of ethical
standards for members and students‑at‑law and provide for its
publication;

47(1) For the purposes of this Act, any conduct of a member,
arising from incompetence or otherwise, that

(a) is incompatible with the best interests
of the public or of the members of the Society, or

(b) tends to harm the standing of the legal
profession generally,

is conduct deserving of sanction, whether or not that conduct relates
to the member’s practice as a barrister and solicitor and whether or not that
conduct occurs in Alberta.

103(1) No person shall, unless he is an active member of the
Society,

.
. .

(b) act as a barrister or as a solicitor in
any court of civil or criminal jurisdiction,

Alberta
Code of Professional Conduct

chapter 10

The
Lawyer as Advocate

.
. .

rules

.
. .

28. When engaged as a prosecutor, a lawyer
exercises a public function involving much discretion and power. Accordingly:

(a) a lawyer’s prime duty is not to seek to
convict, but to see that justice is done through a fair trial on the merits;

(b) a lawyer must act fairly and
dispassionately;

(c) a lawyer must not do anything that might
prevent an accused from being represented by or communicating with counsel;

(d) a lawyer must make timely disclosure to the
accused or defence counsel (or to the court if the accused is not represented)
of all known relevant facts and witnesses, whether tending towards guilt or
innocence.

commentary

.
. .

Rule #28: The terms “prosecutor” and “prosecution”
have reference not only to proceedings under theCriminal Code, but to
criminal, quasi‑criminal and other proceedings instituted pursuant to
legislation (including rules and regulations) that involve a public interest
and potential for the imposition of a penalty. For example, counsel engaged in
disciplinary proceedings on behalf of a professional body would be considered a
prosecutor for the purposes of this rule. Examples and terminology deriving
from prosecutions conducted on behalf of the Attorney‑General should
therefore be read with the necessary changes in reference as appropriate.

The application of Rule #28 to Crown prosecutors is not intended to
establish policy nor to interfere with the proper exercise of prosecutorial
discretion. Rather, the Law Society’s scrutiny of conduct involving an exercise
of discretion will be limited to circumstances in which the discretion was
exercised dishonestly or in bad faith. Examples are:

‑ an exercise of discretion intended to
obstruct, pervert or defeat the course of justice;

‑ an exercise of discretion undertaken for
the personal advantage of the Crown prosecutor;

‑ an exercise of discretion intended to
deprive an individual of equality before and under the law by reason of
discrimination on the basis of race, creed, colour, national or ethnic origin,
gender, religion, marital status, sexual orientation, age, mental or physical
disability or any similar personal attribute.

91. It shall be lawful for the Queen, by
and with the Advice and Consent of the Senate and House of Commons, to make
Laws for the Peace, Order, and good Government of Canada, in relation to all
Matters not coming within the Classes of Subjects by this Act assigned
exclusively to the Legislatures of the Provinces; and for greater Certainty,
but not so as to restrict the Generality of the foregoing Terms of this
Section, it is hereby declared that (notwithstanding anything in this Act) the
exclusive Legislative Authority of the Parliament of Canada extends to all
Matters coming within the Classes of Subjects next herein-after enumerated;
that is to say, __

.
. .

27. The Criminal Law, except the Constitution of Courts of Criminal
Jurisdiction, but including the Procedure in Criminal Matters.

92. In each Province the Legislature may
exclusively make Laws in relation to Matters coming within the Classes of
Subjects next herein-after enumerated; that is to say, —

.
. .

13. Property and Civil Rights in the
Province.

14. The Administration of Justice in the Province, including the
Constitution, Maintenance, and Organization of Provincial Courts, both of Civil
and of Criminal Jurisdiction, and including Procedure in Civil Matters in those
Courts.

IV. Judicial
History

A. Alberta
Court of Queen’s Bench (1997), 205 A.R. 243

16In dismissing the respondent Krieger’s application, the motions judge
considered whether or not the Rule is ultra vires the Province of
Alberta. He found that the Rule and commentary, as read together, apply only
to matters of professional discipline, i.e. bad faith or dishonest conduct by a
lawyer, and that the Rule is not, in pith and substance, a rule of criminal
procedure and did not encroach upon Parliament’s constitutional power.

17The motions judge held that since the birth of Alberta, by convention
and by statute, the Law Society has been charged with maintaining the
discipline and integrity of the bar. The executive branch is responsible for
the discipline of lawyers and has charged the Law Society with that function by
means of the Act. The Law Society, accordingly, had the jurisdiction to review
the conduct of a Crown prosecutor in the exercise of prosecutorial discretion
where there was an allegation of bad faith or dishonesty.

18The motions judge held that conduct amounting to bad faith or dishonesty
is beyond the pale of prosecutorial discretion. He noted that the professional
disciplinary machinery as a remedy against abuses of prosecutorial discretion
is treated as a part of the legal system by the Supreme Court in such decisions
as Nelles v. Ontario, [1989] 2 S.C.R. 170, at p. 198; R. v.
Stinchcombe, [1991] 3 S.C.R. 326, at pp. 339-40; and R. v. Chaplin,
[1995] 1 S.C.R. 727, at para. 21.

19He rejected the argument that Crown prosecutors, as agents of the
Attorney General, should be disciplined only by the Attorney General. The
Attorney General does not have the same duties to the public as does the Law
Society which is charged with protecting the public from dishonest and unsavoury
lawyers and preserving a free and independent bar.

20The motions judge also rejected the argument that because the Act does
not specifically state that it is binding on agents of the Crown, that it is of
no force and effect as regards Crown prosecutors. Regulation of all lawyers,
he said, meant the regulation of all lawyers.

B. Alberta
Court of Appeal (2000), 277 A.R. 31

21The Court of Appeal allowed the appeal and held that it could be
determined on the limited issue of whether the Rule permits the Law Society to
review the conduct of a Crown prosecutor when the Attorney General’s office has
found no bad faith or dishonesty. Sulatycky J.A., for the court, acknowledged
that the provincial legislature has made Crown prosecutors, as barristers,
subject to the Law Society. However, he held that the Law Society lacked the
jurisdiction to review the Attorney General’s decision that there was no bad
faith or dishonesty involved in Krieger’s conduct. He held that any review by
the Law Society of the conduct of Krieger would necessarily be a review of the
conclusion of the Attorney General’s office.

V. Issues

221. Is the Rule and Commentary thereto intra vires the Actand
the Legislature of Alberta?

2. If so, what is the scope of the
Law Society’s jurisdiction to review the conduct of a Crown prosecutor?

3. Does the Law Society have the
jurisdiction to review the prosecutor’s conduct after the Attorney General has
already reviewed the prosecutor’s conduct?

VI. Analysis

A. The
Role of the Attorney General

23Prior to considering the specific questions raised by this appeal, we
believe it is useful to discuss the nature and development of the Attorney
General’s office in Canada. Although we ultimately conclude that the Law
Society retains jurisdiction over the alleged misconduct at the bottom of this
dispute, the respondents rightly observed the unique and important role of the
Attorney General and his agents as distinct from private lawyers.

24The office of Attorney General started in England as early as the
thirteenth century as the King’s Attorney. In essence, the Attorney General
exercised on the King’s behalf the prerogative to bring and terminate
prosecutions. See J. L. J. Edwards, The Law Officers of the Crown
(1964), at pp. 12-14; Law Reform Commission of Canada, Working Paper 62, Controlling
Criminal Prosecutions: The Attorney General and the Crown Prosecutor
(1990). Although there are great differences between the constitution of the
Canadian and English offices of Attorney General, the power to manage
prosecutions of individuals for criminal acts has changed little since these
early times and between these countries. The words of Wilmot C.J. in Wilkesv. The King (1768), Wilm. 322, 97 E.R. 123, at p. 125, remain apt:

As indictments and informations, granted by the King’s Bench, are the
King’s suits, and under his control; informations, filed by his Attorney
General, are most emphatically his suits, because they are the immediate
emanations of his will and pleasure.

25Although prosecutions were predominantly brought privately in England
until 1879, the original power of the Attorney General was and is of
initiating, managing and terminating both private and public prosecutions.
This power finds its source in the Attorney General’s general role as the
official legal advisor to the Crown.

26In Canada, the office of the Attorney General is one with constitutional
dimensions recognized in the Constitution Act, 1867. Although the
specific duties conventionally exercised by the Attorney General are not
enumerated, s. 135 of that Act provides for the extension of the authority and
duties of that office as existing prior to Confederation. A similar provision
applicable to the Attorney General of Alberta is found in the Alberta Act,
S.C. 1905, c. 3 (reprinted in R.S.C. 1985, App. II, No. 20), at s.
16(1). Furthermore, s. 63 of the Constitution Act, 1867requires that
the Cabinets of Quebec and Ontario include in their membership the Attorneys
General.

27Attorneys General in this country are, of course, charged with duties
beyond the management of prosecutions. As in England, they serve as Law
Officers to their respective legislatures, and are responsible for providing
legal advice to the various government departments. Unlike England, the
Attorney General is also the Minister of Justice and is generally responsible
for drafting the legislation tabled by the government of the day. The numerous
other duties of the provincial and federal Attorneys General are broadly
outlined in the various Acts establishing the Departments of Justice in each
jurisdiction.

(b) shall ensure that public affairs are
administered according to law;

(c) shall superintend all matters relating
to the administration of justice in Alberta that are within the powers or
jurisdiction of the Legislature or the Government;

(d) shall advise on legislative acts and
proceedings of the Legislature and generally advise the Crown on matters of law
referred to the Minister by the Crown;

(e) shall exercise the powers and is charged
with the duties attached to the office of the Attorney General of England and
the Solicitor General of England by law or usage insofar as those powers and
duties are applicable to Alberta;

.
. .

(j) is responsible for the conduct of the
following matters, the enumeration of which shall not be taken to restrict the
general nature of any provision of this Schedule:

.
. .

(iii) the consideration and argument of appeals from convictions and
acquittals of persons charged with indictable offences;

29The gravity of the power to bring, manage and terminate prosecutions
which lies at the heart of the Attorney General’s role has given rise to an
expectation that he or she will be in this respect fully independent from the
political pressures of the government. In the U.K., this concern has resulted
in the long tradition that the Attorney General not sit as a member of
Cabinet. See Edwards, supra, at pp. 174-76. Unlike the U.K., Cabinet
membership prevails in this country. However, the concern remains the same,
and is amplified by the fact that the Attorney General is not only a member of
Cabinet but also Minister of Justice, and in that role holds a position with
partisan political aspects. Membership in Cabinet makes the principle of
independence in prosecutorial functions perhaps even more important in this
country than in the U.K.

30It is a constitutional principle in this country that the Attorney
General must act independently of partisan concerns when supervising
prosecutorial decisions. Support for this view can be found in: Law Reform
Commission of Canada, supra, at pp. 9-11. See also Binnie J. in R.
v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12, at paras. 157-58 (dissenting
on another point).

31This side of the Attorney General’s independence finds further form in
the principle that courts will not interfere with his exercise of executive
authority, as reflected in the prosecutorial decision-making process. In R.
v. Power, [1994] 1 S.C.R. 601, L’Heureux-Dubé J. said, at pp. 621-23:

It is manifest that, as a matter of principle and policy, courts should
not interfere with prosecutorial discretion. This appears clearly to stem from
the respect of separation of powers and the rule of law. Under the doctrine of
separation of powers, criminal law is in the domain of the
executive . . . .

Most [prosecutorial powers] derive . . . from the royal prerogative,
defined by Dicey as the residue of discretionary or arbitrary authority
residing in the hands of the Crown at any given time. Prerogative powers are
essentially those granted by the common law to the Crown that are not shared by
the Crown’s subjects. While executive action carried out under their aegis
conforms with the rule of law, prerogative powers are subject to the supremacy
of Parliament, since they may be curtailed or abolished by statute.

It is fundamental to our system of justice that criminal proceedings be
conducted in public before an independent and impartial tribunal. If the
court is to review the prosecutor’s exercise of his discretion the court
becomes a supervising prosecutor. It ceases to be an independent tribunal.
[Emphasis in original.]

32The court’s acknowledgment of the Attorney General’s independence from
judicial review in the sphere of prosecutorial discretion has its strongest
source in the fundamental principle of the rule of law under our Constitution.
Subject to the abuse of process doctrine, supervising one litigant’s decision-making
process __ rather than the conduct of litigants before the court
__ is beyond the legitimate reach of the court. In Re Hoem and Law
Society of British Columbia (1985), 20 C.C.C. (3d) 239 (B.C.C.A.), Esson
J.A. for the court observed, at p. 254, that:

The independence of the Attorney-General, in deciding fairly who should
be prosecuted, is also a hallmark of a free society. Just as the independence
of the bar within its proper sphere must be respected, so must the independence
of the Attorney-General.

We agree with
these comments. The quasi-judicial function of the Attorney General cannot be
subjected to interference from parties who are not as competent to consider the
various factors involved in making a decision to prosecute. To subject such
decisions to political interference, or to judicial supervision, could erode
the integrity of our system of prosecution. Clearly drawn constitutional lines
are necessary in areas subject to such grave potential conflict.

B. Is the
Rule Intra Vires the Act and the Legislature of Alberta?

33Section 91(27) of the Constitution Act, 1867 grants jurisdiction
over criminal law and criminal procedure to the Federal Government. Federal
jurisdiction over criminal law and criminal procedure includes the authority to
determine the procedures that govern criminal trials. Sections 92(13) and (14)
grant jurisdiction over property and civil rights and the administration of
justice, both criminal and civil, to the Provinces. Provincial jurisdiction
over property and civil rights and the administration of justice includes
licensing and regulation of lawyers, including reviews of alleged breaches of
ethics. See P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.),
vol. 1, at p. 21-10; and Law Society of British Columbia v. Mangat,[2001]
3 S.C.R. 113, 2001 SCC 67, at paras. 38-43 and para. 46. It would thus appear
that there is a strong possibility of overlap between the provincial and
federal spheres. Provincial regulations establishing the proper conduct of a
lawyer in a criminal trial are likely to impact procedure in a criminal trial.
Nonetheless, it is our view that the Rule is intra vires the province.
Although the legislative competence of the province to regulate the Law Society
has been grounded in both ss. 92(13) and (14), the weight of authority with
which we agree finds greater comfort in s. 92(13).

34To determine whether the Rule is an unconstitutional regulation by the
province of criminal law and procedure or a constitutional regulation with
respect to property and civil rights and the administration of justice, we look
to the “pith and substance” of the Rule: Whitbread v. Walley, [1990] 3
S.C.R. 1273, at p. 1286.

Federalism cases, like many other areas of legal
interpretation, greatly involve the proper characterization of the law under
attack. In General Motors of Canada Ltd. v. City National Leasing,
[1989] 1 S.C.R. 641 (hereinafter “GM Canada”), at pp. 666‑69,
Dickson C.J. offered a useful three‑step structure for analyzing a claim
that a law is ultra vires. . . . With respect to the first step,
Dickson C.J. said the following (at pp. 666‑67):

The first step should be to consider whether and to what extent the
impugned provision can be characterized as intruding into provincial powers.
If it cannot be characterized as intruding at all, i.e., if in its pith and
substance the provision is federal law, and if the act to which it is attached
is constitutionally valid (or if the provision is severable or if it is
attached to a severable and constitutionally valid part of the act) then the
investigation need go no further.

If, on the other hand, the legislation is not in pith and substance
within the constitutional powers of the enacting legislature, then the court
must ask if the impugned provision is nonetheless a part of a valid legislative
scheme. If it is, at the third stage the impugned provision should be upheld
if it is sufficiently integrated into the valid legislative scheme.

36The respondents argued that the Rule invades the core of federal power
to make laws with respect to criminal law and procedure and is thus ultra
vires. They argued that the purpose of the Rule is to regulate Crown
disclosure during the course of a prosecution by establishing more onerous
obligations to disclose information than exists at law.

37The appellant argued that the Rule, when read together with the
commentary, limits the Law Society’s review of an allegation that a Crown
prosecutor failed to disclose information to those circumstances that involve
bad faith or dishonesty. Owing to this limitation, the Rule is directed
towards a Crown prosecutor’s ethical obligation as a lawyer rather than
criminal law or procedure. They dismissed the argument that the Rule imposes
more onerous obligations than those that exist in law and argued that the
absence of the modifier “to the extent required by law and accepted practice”
is irrelevant __ the effect of the Rule, when read with the
commentary, is the same as if the modifier were included.

38To determine whether the Rule is directed at professional discipline or
criminal law and procedure, we note that:

(1) the Rule is situated within the Alberta Code of Professional
Conduct, which is directed at governing the ethical conduct of lawyers;

(2) the Rule is authorized by s. 6(l) of the Act, which permits the
Benchers to “authorize or establish a code of ethical standards for members”;

(3) the commentary to the Rule limits the application of the Rule to
circumstances in which the lawyer acted dishonestly or in bad faith;

(4) the commentary to the Rule states that “[t]he application of Rule
#28 to Crown prosecutors is not intended to establish policy nor to interfere
with the proper exercise of prosecutorial discretion”; and

(5) the examples contained in the commentary demonstrate that the Rule
is not intended to alter or interfere with this Court’s ruling in Stinchcombe.

39As such, the motions judge found that the Rule, as interpreted in
accordance with the commentary, applies only to matters of professional
discipline and, therefore, does not intrude, at all, into the area of criminal
law and procedure. We agree. The analysis need not go beyond the first step.
In pith and substance, the Rule is intra vires the Legislature of
Alberta and falls within the broad enabling language of the Act.

C. The Law
Society’s Jurisdiction

40We agree with the Court of Appeal that the Law Society has the
jurisdiction to regulate the conduct of all Alberta lawyers. The Act, s. 6(l)
states: “The Benchers may by resolution . . . authorize or establish a code of
ethical standards for members and students-at-law and provide for its
publication”. Further, s. 103(1)(b) states: “No person shall, unless he is an
active member of the Society . . . act as a barrister or as a solicitor in any
court of civil or criminal jurisdiction”.

41To be a Crown prosecutor in Alberta, there are two requirements: (1)
employment as such by the Attorney General’s office and (2) membership in the
Law Society of Alberta. To keep his or her job, a Crown prosecutor must
perform to the standards of the employer, the Attorney General’s office, and
must remain in good standing by complying with the ethical requirements of the
Law Society. All Alberta lawyers are subject to the rules of the Law Society —
Crown prosecutors are no exception.

D. Prosecutorial
Discretion

42In making independent decisions on prosecutions, the Attorney General
and his agents exercise what is known as prosecutorial discretion.This
discretion is generally exercised directly by agents, the Crown attorneys, as
it is uncommon for a single prosecution to attract the Attorney General’s
personal attention.

43“Prosecutorial discretion” is a term of art. It does not simply
refer to any discretionary decision made by a Crown prosecutor. Prosecutorial
discretion refers to the use of those powers that constitute the core of the
Attorney General’s office and which are protected from the influence of
improper political and other vitiating factors by the principle of
independence.

44L’Heureux-Dubé J., in quoting David Vanek’s work, “Prosecutorial Discretion”
(1987-88), 30 Crim. L.Q. 219, at p. 219, said that “[p]rosecutorial
discretion refers to the discretion exercised by the Attorney‑General in
matters within his authority in relation to the prosecution of criminal
offences” (Power, supra, at p. 622).

45As discussed above, these powers emanate from the office holder’s role
as legal advisor of and officer to the Crown. In our theory of government, it
is the sovereign who holds the power to prosecute his or her subjects. A
decision of the Attorney General, or of his or her agents, within the authority
delegated to him or her by the sovereign is not subject to interference by
other arms of government. An exercise of prosecutorial discretion will,
therefore, be treated with deference by the courts and by other members of the
executive, as well as statutory bodies like provincial law societies.

46Without being exhaustive, we believe the core elements of prosecutorial
discretion encompass the following: (a) the discretion whether to bring the
prosecution of a charge laid by police; (b) the discretion to enter a stay of
proceedings in either a private or public prosecution, as codified in the Criminal
Code, R.S.C. 1985, c. C-46, ss. 579 and 579.1; (c) the discretion to
accept a guilty plea to a lesser charge; (d) the discretion to withdraw from
criminal proceedings altogether: R. v. Osborne (1975), 25 C.C.C. (2d)
405 (N.B.C.A.); and (e) the discretion to take control of a private
prosecution: R. v. Osiowy (1989), 50 C.C.C. (3d) 189 (Sask. C.A.).
While there are other discretionary decisions, these are the core of the
delegated sovereign authority peculiar to the office of the Attorney General.

47Significantly, what is common to the various elements of prosecutorial
discretion is that they involve the ultimate decisions as to whether a
prosecution should be brought, continued or ceased, and what the
prosecution ought to be for. Put differently, prosecutorial discretion refers
to decisions regarding the nature and extent of the prosecution and the
Attorney General’s participation in it. Decisions that do not go to the nature
and extent of the prosecution, i.e., the decisions that govern a Crown
prosecutor’s tactics or conduct before the court, do not fall within the scope
of prosecutorial discretion. Rather, such decisions are governed by the
inherent jurisdiction of the court to control its own processes once the
Attorney General has elected to enter into that forum.

E.
Deference to Prosecutorial Discretion

48In Regan, supra, at paras. 166-68, Binnie J., in dissent
but not on this point, discussed the nature of prosecutorial discretion and
said:

The trial judge in this case was careful not to
understate or diminish the broad scope traditionally and properly afforded to
prosecutorial discretion. Courts are very slow to second‑guess the
exercise of that discretion and do so only in narrow circumstances. In R.
v. Beare, [1988] 2 S.C.R. 387, for example, the Court noted that a system
which did not confer a broad discretion on law enforcement and prosecutorial
authorities would be unworkable, per La Forest J., at p. 410:

Discretion is an essential feature of the criminal justice system. A
system that attempted to eliminate discretion would be unworkably complex and
rigid. Police necessarily exercise discretion in deciding when to lay charges,
to arrest and to conduct incidental searches, as prosecutors do in deciding
whether or not to withdraw a charge, enter a stay, consent to an adjournment,
proceed by way of indictment or summary conviction, launch an appeal and so on.

Still, the corollary to these extensive
discretionary powers is that they must be exercised with objectivity and
dispassion. This principle has found its way into the Canadian Bar
Association’s Code of Professional Conduct (1988); see chapter IX, “The
Lawyer as Advocate”, s. 9 (Duties of Prosecutor):

The prosecutor exercises a public function involving much discretion
and power and must act fairly and dispassionately.

Because the exercise of prosecutorial discretion
is, within broad limits, effectively non‑reviewable by the courts, it is
all the more imperative that the discretion be exercised in a fair and
objective way. Where objectivity is shown to be lacking, corrective action may
be necessary (as here) to protect what O’Connor referred to as “the integrity”
of the criminal justice system.

49In Campbell v. Attorney-General of Ontario (1987), 35 C.C.C. (3d)
480 (Ont. C.A.), it was held that an Attorney General’s decision to stay
proceedings would not be reviewed save in cases of “flagrant impropriety”. See
also Power, supra; Chartrand v. Quebec (Minister of Justice)
(1987), 59 C.R. (3d) 388 (Que. C.A.). Within the core of prosecutorial
discretion, the courts cannot interfere except in such circumstances of
flagrant impropriety or in actions for “malicious prosecution”: Nelles,
supra. In all such cases, the actions of the Attorney General will be
beyond the scope of his office as protected by constitutional principle, and
the justification for such deference will have evaporated.

F.
Prosecutorial Discretion vs. Professional Conduct

50There is a clear distinction between prosecutorial discretion and
professional conduct. It is only the latter that can be regulated by the Law
Society. The Law Society has the jurisdiction to investigate any alleged
breach of its ethical standards, even those committed by Crown prosecutors in
connection with their prosecutory discretion. This is important as the
interests of the Attorney General in promoting the administration of justice
may differ from those of the Law Society in regulating the legal profession and
maintaining public confidence. The remedies available to each entity differ
according to their respective function. The Attorney General’s office has the
ability to discipline a prosecutor for failing to meet the standards set by the
Attorney General’s office for prosecutors but that is a different function from
the ability to discipline the same prosecutor in his or her capacity as a
member of the Law Society of Alberta. It may be that in some instances the
conduct required by the Attorney General to retain employment will exceed the
standards of the Law Society but of necessity that conduct will never be lower
than that required by the Law Society. In addition, the Attorney General,
after finding that a Crown prosecutor has acted in bad faith, does not have the
power to restrict a member’s practice or disbar a member. An Attorney General
can do nothing to prevent a Crown prosecutor from practising law in another
area.

51Review by the Law Society for bad faith or improper purpose by a
prosecutor does not constitute a review of the exercise of prosecutorial
discretion per se, since an official action which is undertaken in bad
faith or for improper motives is not within the scope of the powers of the
Attorney General. As stated by McIntyre J. in his concurrence in Nelles,
supra, at p. 211: “public officers are entitled to no special immunities
or privileges when they act beyond the powers which are accorded to them by law
in their official capacities”. We agree with the observation of MacKenzie J.
that “conduct amounting to bad faith or dishonesty is beyond the pale of
prosecutorial discretion” (para. 55).

52A finding that the Law Society does not have the jurisdiction to review
or sanction conduct which arises out of the exercise of prosecutorial
discretion would mean that prosecutors who act in bad faith or dishonestly
could not be disciplined for such conduct. A prosecutor who laid charges as a
result of bribery or racism or revenge could be discharged from his or her
office but, in spite of such malfeasance, would be immune to review of that
conduct by the Law Society.

53Section 47(1) of the Act states:

47(1) For the purposes of this Act, any conduct of a member,
arising from incompetence or otherwise, that

(a) is incompatible with the best interests of the public or of the
members of the Society, or

(b) tends to harm the standing of the legal profession generally,

is conduct deserving of sanction, whether or not that conduct relates
to the member’s practice as a barrister and solicitor and whether or not that
conduct occurs in Alberta.

The conduct
over which the Law Society has jurisdiction by virtue of s. 47 is very broad,
encompassing conduct which may be unrelated to one’s legal practice. It would
be an absurd interpretation of the statute to include such profession‑unrelated
conduct but exclude decisions of a prosecutor in a criminal matter.

54In Stinchcombe, supra, the Court held that the Crown has
an obligation to disclose all relevant information to the defence. While the
Crown Attorney retains the discretion not to disclose irrelevant information,
disclosure of relevant evidence is not, therefore, a matter of prosecutorial
discretion but, rather, is a prosecutorial duty. Absent an explanation
demonstrating that the Crown Attorney did not act dishonestly or in bad faith,
it is settled law, per Sopinka J. for the Court in Stinchcombe, supra,
at p. 339, that “[t]ransgressions with respect to this duty constitute a very
serious breach of legal ethics”. This is reflected in para. (d) of the Rule
which applies only to breaches of the duty to disclose which involve dishonesty
or bad faith.

55In this case, it would appear that the respondent Krieger failed to
disclose all relevant information to the defence, but later offered an
explanation. If true, the failure to disclose would constitute a violation of
the duty expressed in Stinchcombe. The explanation would help to
determine if the respondent Krieger had acted dishonestly or in bad faith. If
so, this would be an ethical breach and would fall within the jurisdiction of
the Law Society. The Law Society in the fulfillment of their duties will
determine whether the respondent acted in conformity with the professional
ethics of the Law Society of Alberta.

H. Application
of this Judgment to Provincial and Federal Crown Prosecutors

56The intervener Attorney General of Canada argues that this Court should
restrict its decision to the jurisdiction of a law society over provincial
Crown prosecutors as different considerations would apply if a law society were
to assert jurisdiction over federal Crown prosecutors. A law society has the
jurisdiction to review the conduct of a federal or provincial Crown prosecutor
to determine whether the prosecutor has acted dishonestly or in bad faith in
exercising prosecutorial discretion or fulfilling the disclosure obligations of
the Crown. As members of their respective law societies, federal Crown
prosecutors are subject to the same ethical obligations as all other members of
the bar and not immune to discipline for dishonest or bad faith conduct.

I. Review
of Krieger’s Conduct

57The Law Society and the Attorney General have different mandates and
objectives. It should be obvious that a review of a Crown Attorney’s conduct
by the Law Society is not a review of the internal operation of the Attorney
General’s office.

58An inquiry by the Attorney General into whether a prosecutor has failed
to meet departmental standards and should be removed from a case may involve
different considerations, standards and/or procedures than an inquiry by the
Law Society into whether that prosecutor has breached the rules of ethics
warranting sanction. The Attorney General is responsible for determining the
policies of the Crown prosecutors. The Law Society is responsible for
enforcing the ethical standards required of lawyers. Certain aspects of a prosecutor’s
conduct may trigger a review by the Attorney General and other aspects, usually
ethical conduct considerations, may mean a review by the Law Society. A
prosecutor whose conduct so contravenes professional ethical standards that the
public would be best served by preventing him or her from practising law in any
capacity in the province should not be immune from disbarment. Only the Law
Society can protect the public in this way.

59The Law Society’s jurisdiction to review the respondent’s failure to
disclose relevant evidence to the defendant is limited to examining whether it
was an ethical violation. As explained by M. Proulx and D. Layton in Ethics
and Canadian Criminal Law (2001), at p. 657:

It is worth underlining that not every breach of the
legal and constitutional duty to disclose constitutes a violation of an ethical
duty. Non-disclosure can result, for instance, from mere inadvertence, a
misunderstanding of the nature of the evidence, or even a questionable strategy
adopted in good faith. These lapses may represent a denial of the accused’s
constitutional rights, but an ethical violation often requires more. A finding
of professional misconduct must be based upon an act or omission revealing an
intentional departure from the fundamental duty to act in fairness. Thus, a
judicial determination that disclosure has wrongfully been withheld will not
necessarily reveal a breach of ethics. Conversely, an egregious breach of
ethics may in some cases have no appreciable effect on the fairness of the
trial, when appropriate remedies can cure any harm suffered by the accused.

VII. Conclusion

60In light of the foregoing analysis, we answer the issues in this appeal
as follows. The Rule is intra vires the Actand the Legislature
of Alberta. The Law Society has jurisdiction to review the conduct of a
prosecutor to determine whether the prosecutor acted dishonestly or in bad
faith in failing to disclose relevant information to an accused in a timely
manner, notwithstanding that his employer, the Attorney General, has reviewed
it from the perspective of an employer.

61The appeal is allowed, the judgment of the Alberta Court of Appeal is
set aside, and the judgment of MacKenzie J. at trial is restored. Since the
appellant did not request costs, none are awarded.

Appeal allowed.

Solicitor for the appellant: The Law Society of Alberta,
Calgary.

Solicitor for the respondent Krieger: Christopher D.
Evans, Calgary.

Solicitor for the respondent the Minister of Justice and Attorney
General for Alberta: The Department of Justice, Edmonton.

Solicitor for the intervener the Attorney General of
Canada: The Department of Justice, Ottawa.

Solicitor for the intervener the Attorney General for
Ontario: The Ministry of the Attorney General, Toronto.

Solicitor for the intervener the Attorney General of
Quebec: The Department of Justice, Sainte‑Foy.

Solicitor for the intervener the Attorney General of Nova
Scotia: The Public Prosecution Service, Halifax.

Solicitor for the intervener the Attorney General of
Manitoba: The Department of Justice, Winnipeg.

Solicitor for the intervener the Attorney General of British
Columbia: The Ministry of the Attorney General, Victoria.

Solicitor for the intervener the Attorney General for
Saskatchewan: The Deputy Attorney General for Saskatchewan, Regina.

Solicitor for the intervener the Attorney General of Newfoundland
and Labrador: The Department of Justice, St. John's.

Solicitors for the intervener the Federation of Law Societies of
Canada: Gold & Fuerst, Toronto.